CIA Memo Reveals Flaws in Waterboarding's Legal Justification

A footnote in the recently released 2004 CIA Office of Inspector General's review of the government's interrogation program appears to undermine a key legal justification that allowed the spy agency to use the controversial technique of waterboarding against suspected terrorist detainees.

A central legal—and polemic—argument for use of waterboarding has been the fact that some U.S. soldiers are subjected to the procedure during training. In 2002, the Department of Justice's Office of Legal Counsel wrote a memo approving the technique, based in part on the fact that it had produced no long-term ill effects on soldiers who had undergone waterboarding during training. Those memos were later withdrawn by the DOJ.

But the latest review shows the waterboarding technique used on suspected terrorists was different in technique and duration from that administered to U.S. soldiers.

The OIG report says that experts' initial analysis of waterboarding "was probably misrepresented at the time," according to the CIA's Office of Medical Services, because "the SERE [survival, evasion, resistance, and escape program] waterboard experience is so different from the subsequent agency usage as to make it almost irrelevant."

As a consequence, the OIG found, "according to [the Office of Medical Services], there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe."

One of the CIA interrogators even told the OIG investigators that applying the waterboarding technique on real prisoners who were unaware that it was only a simulated suffocation was a different exercise entirely. "One of the psychologists/interrogators acknowledged that the agency's use of the technique differed from that used in SERE training and explained that the agency's technique is different because it is 'for real' and is more poignant and convincing," the report says.

Indeed, it was instructors from the military's survival, evasion, resistance, and escape program who, in the wake of the 9/11 attacks, were consulted in the creation of the CIA's so-called enhanced interrogation techniques, which included waterboarding. Interrogators from the CIA were subsequently limited to the use of a far smaller set of less abusive techniques, as listed in the Army Field Manual, in January 2009.

Released publicly on Monday, the OIG report also found that CIA interrogators sometimes went outside proscribed guidelines for interrogations, including a mock execution, the threatened use of a power drill against a detainee, the threat to kill the children, and the threatened rape of a suspect's mother.

Moreover, waterboarding was not carried out as the 2002 Office of Legal Counsel memos described. CIA cables show that Khalid Shaikh Mohammed was subjected to use of the waterboard 183 times, though each "application" often lasted for a few seconds. The OIG concluded that interrogators used the waterboard on Mohammed "in a manner inconsistent with the SERE application of the waterboard and the description of the waterboard in the DOJ Office of Legal Counsel opinion, in that the technique was used on [Mohammed] a large number of times."

A special prosecutor, John Durham, has been tasked with reviewing the OIG report to see if further investigation of detainee abuse in CIA custody is warranted.